S-1367-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Christopher Coons (D-DE)
What it does
The NO FAKES Act would create a new federal property right for every individual — living or deceased — to control the use of their voice or visual likeness in AI-generated "digital replicas." It would establish civil liability for anyone who creates or distributes an unauthorized digital replica, and would create a notice-and-takedown system for online platforms similar to the copyright system under the DMCA. Licenses to use someone's likeness would require written consent, be capped at 10 years (5 years for minors), and post-mortem rights would last up to 70 years after death, renewable in 5-year increments if actively used.
Who benefits
Living individuals whose voice or likeness could be replicated without consent, including private citizens, not just celebrities. Deceased individuals' estates and heirs, who would inherit and control likeness rights for up to 70 years. Performers, musicians, and actors whose professional identity has commercial value. Record labels and studios holding exclusive contracts with artists, who gain standing to sue. Children and minors, who receive additional licensing protections requiring court approval. Victims of non-consensual AI-generated intimate imagery. Journalists and satirists, who receive explicit carve-outs. Online platforms that comply with the notice-and-takedown system, who gain safe harbor from liability.
Who is hurt
AI companies and developers whose tools can generate realistic likenesses, who face potential liability and product redesign costs. Online platforms that host user-generated content, who must implement new takedown infrastructure and digital fingerprinting systems. Independent content creators, fan communities, and remix artists who may face liability for AI-generated content involving public figures, even when satirical intent is ambiguous. Researchers and educators using AI likeness tools for legitimate purposes who must navigate complex exemption boundaries. Smaller platforms with fewer resources to implement compliance systems. States with existing right-of-publicity laws, whose statutes would be partially preempted for digital replica claims in expressive works. The general public, who may face reduced access to AI creative tools as developers limit functionality to avoid liability.
Supporters argue
Supporters argue that existing state right-of-publicity laws are a patchwork — only about half of states have them, and none were designed for AI-generated replicas — leaving most Americans with no legal recourse when their voice or face is cloned without consent. They contend the bill addresses documented, concrete harms: AI-generated fake audio of public figures has already been used in election disinformation, and non-consensual intimate deepfakes have caused measurable psychological harm to victims. Supporters further argue the bill's carve-outs for news, satire, commentary, and parody are robust, and that the notice-and-takedown framework — modeled on the proven DMCA system — balances individual rights against platform practicality.
Opponents argue
Opponents argue that the bill's broad definition of "digital replica" and its post-mortem rights lasting up to 70 years could chill legitimate artistic expression, including historical dramatizations, AI-assisted documentaries, and creative works involving public figures — areas where the First Amendment has traditionally protected robust speech. They contend that the notice-and-takedown mechanism, despite DMCA parallels, could be weaponized by powerful estates or corporations to suppress unflattering but protected commentary, and that the $750,000-per-work statutory damages cap for non-compliant platforms creates liability exposure so severe it may cause over-removal of lawful content. Critics also argue that federal preemption of state right-of-publicity law in expressive works removes stronger state-level protections that some individuals currently enjoy.
Constitutional context
Congress's authority to create this right rests on the Commerce Clause (Art. I, §8, cl. 3), as the bill explicitly requires that infringing activity affect interstate commerce. The bill also implicates the First Amendment, which the bill attempts to address through its carve-outs for news, satire, parody, and commentary; courts would independently assess whether those carve-outs are sufficiently protective of protected speech, particularly for AI-generated expressive works involving public figures. Post-Loper Bright, any Copyright Office regulations implementing the notice-and-takedown or registration systems would face independent judicial scrutiny rather than deference.
Checks and balances
Congress creates the new federal right and liability framework; the Copyright Office administers the registration and designated-agent directories; federal courts adjudicate civil claims and review the scope of exemptions; online platforms serve as a private enforcement layer through the notice-and-takedown system, subject to judicial oversight via subpoena and false-notice penalties.
Historical precedent
The Digital Millennium Copyright Act (1998) established the notice-and-takedown framework for copyright infringement on online platforms that this bill closely models; however, no prior federal law has created a standalone property right in individual voice and likeness, making this bill the first federal action in that specific domain.